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Non-intervention (“Absehen von der Verfolgung”)

According to § 6 Juvenile Court Act, the prosecutor and the judge may drop a juvenile’s case if the offence is punishable by a fine or not more than 5 years of imprisonment (which corresponds to a 10-year sentence in adult penal law), unless measures of interventionist diversion appear necessary to prevent the juvenile from re-offending. Non-intervention is not an option if the crime has led to the death of a person.

Non-intervention is recommended in cases of petty misdemeanours by “nonproblem” juveniles, for whom a special preventive effect results from the mere fact that the authorities have become involved (Jesionek 2007; Schroll 2010). The premise of presumed innocence should be noted.

Diversion With Intervention (“ Rucktritt von der Verfolgung”)

Austrian legislation includes the concept of diversion with intervention.

The public prosecutor or the judge decides on diversion as an intervention when it is not possible to simply drop the case and yet there are no grounds of general prevention that make it seem indispensable to institute criminal proceedings including the pronouncement of a sentence (§ 7 Juvenile Court Act) (see details in Schwaighofer 2001). Furthermore, the prosecutor may only use this instrument in the cases of criminal offences that carry the penalty of a fine or not more than 5 years of imprisonment, the circumstances of the case are clarified, and if the remaining general preconditions of a diversion measure are met. Excluded are cases of “severe guilt”, a resulting death (with the exceptions that the victim was killed by negligence or that the dead person is a relative of the young alleged offender and he has physiological problems because of his act), or when there are grounds of special preventative nature requiring punishment (Schhtz 1999).

The implementation of diversion is independent of the agreement or cooperation of the victim, but is based on the principle of consent of the suspect (Hopfel 2002). The palette of diversion options ranges from suspending prosecution for a probation period, via out-of-court settlement, such as victim-offender mediation known as “Tatausgleich” or community service, to a kind of fine (Geldbufie).

Compensation or resettlement should be provided by the alleged offender. Whenever possible this should bear a direct relation to the diversion measure, although it must be appropriate to the capabilities of the young person, and not unnecessarily render reintegration into society more difficult.

Diversion measures are recorded in the court register for a period of 5 years. However, no entry in police records is made, hence there is no criminal record.

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